In re Smith's Estate
| Decision Date | 05 April 1949 |
| Docket Number | 47361. |
| Citation | 36 N.W.2d 815,240 Iowa 499 |
| Parties | In re SMITH'S ESTATE. KUHN v. HUDSON et al. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted]
Edwin Willcockson, of Sigourney, pro se., for appellants.
C J. Lambert, of Sigourney, for claimant-appellee.
Snakenberg & Snakenberg, of Sigourney, for administrator-appellee.
Louisa Smith died intestate April 15, 1946, leaving no spouse, but survived by her daughter, Grace Conklin, and seven minor children of a deceased daughter, Gertrude Liechti. Bernice L Kuhn, 33, the claimant, a daughter of a deceased sister of the intestate, lived in the home of the latter for approximately eighteen years--from the time she was about ten years old until 1943. Their relations at all times were very close and congenial. Claimant was about the same age as the daughter, Grace. The property which claimant received from the estate of her mother was largely invested in Home Owners Loan Corporation bonds by her guardian. Upon the discharge of her guardian in 1935, when she was twenty-one years old, she received these bonds.
Fred Smith, husband of Louisa, had preceded her in death several years, leaving her about 900 acres of land near Sigourney, apparently of mediocre quality and heavily incumbered, except 80 acres. In 1936, the insurance company, holding the mortgage, conditioned its renewal upon a reduction of the principal. Louisa asked Anna Smith, mother of her deceased husband, for a loan of $4000, which sum the mother-in-law told her she did not have available. Claimant, who overheard this talk, then told her banker, at Sigourney on September 17, 1936, to sell enough of her HOLC bonds to procure $4000. When the bond money of $4180 came in, the banker put it into a demand certificate of deposit payable to claimant. On October 5, 1936, claimant and Louisa same to the bank and claimant indorsed the certificate and gave it to the banker, who deposited it in the checking account of Louisa Smith. This deposit of $4180 together with an additional deposit by Louisa, and a small balance in her account, was sufficient to pay a check of $4569.24, which Louisa had drawn thereon and sent to the morgagee. For some unaccountable reason, no note or written evidence of this loan or debt was give by Louisa to claimant.
Louisa did much of her banking at Hayesville. She and claimant usually came to the bank together. Her liability account at this bank showed that, commencing on October 4, 1937, when Louisa borrowed $1000, through each year to the last note on September 30, 1942, due January 2, 1943, she had given nine other notes to the bank, aggregating several thousand dollars. Claimant had indorsed each of these notes and had also pledged as collateral security one or more of her HOLC bonds. The banker testified that from their conversation and the fact that, each at times gave money to the other, it appeared to him there had been mutual accommodations between them in money matters. All of the note obligations to the bank, above noted, were later satisfied, and there was no evidence of like transactions subsequent to the note of September 30, 1942.
On September 16, 1946, claimant filed with the clerk of the district court her claim merely stating, 'Money loaned $4000', which she swore was 'just, true and unpaid'.
On April 16, 1947, Edwin Willcockson, as guardian of the Liechti minors, filed his verified application for an order, stating that: his wards were grandchildren of Louisa Smith and inherited an undivided one-half interest in the real estate left by her; he was informed some invalid claims, which should not be allowed by the administrator, had been filed but not allowed; in order to determine from the face of the claims it will be necessary that any alleged invalid claims be made more specific as to dates, amounts, balance due, and whether written or oral; the guardian should be permitted to intervene in said matter and in this estate and contest the allowance of any invalid or questionable claim; and the administrator be directed to disallow and contest any invalid claim. He prayed that the court fix a time for hearing on the application with notice thereof, and that orders be granted as prayed and such others as might be proper. The record does not disclose that any hearing was had or orders were made.
But, on April 24, 1947, claimant swore to and filed an amendment to her original claim, stating: that on October 5, 1936, she 'loaned on temporary verbal arrangement to Louisa Smith, $4000 to assist her in refinancing her farm mortgage with the Equitable Life Insurance Co. of New York'; that she was a niece of deceased and had lived in her home for 18 years, and after October 5, 1936 they had owned an automobile together and she owned some furniture, including a refrigerator, in the Smith home; that each had borrowed small sums from each other, and had frequently talked about having a settlement and reducing the difference to writing in the form of a note; that there was no interest ever figured or paid on the original $4000 loan, but just before the death of Louisa, the latter discussed the $4000 debt with her daughter, Grace Conklin, whom she told about the debt, and that she was going to make a note as soon as she felt a little better; and that Louisa had a relapse and died suddenly, owing a balance on the claim of more than $4000.
Claimant, being a party to this action and also interested in the event thereof was incompetent to testify, and was not permitted, under section 622.4, Code of 1946, I.C.A., to testify to any of the matters alleged which were communications or personal transactions with deceased.
On April 26, 1947, the respective attorneys for the claimant, administrator, and intervenors, in writing, agreed that; 1. The 'disputed' claim for $4000, as amended, be that day brought on for trial, without a jury, to take the testimony of Grace Conklin, and that then the trial be adjourned to a later time; 2. 'It is further stipulated and agreed that the Guardian and Guardian Ad Litem for the Leichti minors shall have the right to intervene and defend without objection from the claimant or the executor and shall be considered to have intervened and have made any and all general objections that he could make to said claim and may have the right to make any specific objections that he deems proper in connection with his duties as guardian ad litem at any time during the trial.'
3. What objections, referred to in paragraph 3, supra, if any there were, 'considered as having been made' by the administrator 'for his protection,' are not disclosed by the record before us. The stipulation was accepted and approved that day by Judge Yoder.
Directly after the agreement was executed and approved, Grace Conklin was examined as a witness for claimant. She testified to the relationships of herself and others to deceased as noted herein, and of claimant's living in the latter's home until 1943 when she bought and moved into her own home. Witness was married in 1932 and remained in her mother's home until September, 1936. She was familiar with her mother's financial affairs, and of the demand of the mortgagee for some payment on the principal. She knew something of the financial dealings between her mother and claimant, but did not disclose their nature or extent. Her sister, Gertrude Liechti, died in March, 1945, and thereafter her minor children, with ages from four to fifteen, lived in grandmother Smith's home. The witness was with her mother for a few weeks before her death. Claimant made an offer of proof of a conversation between deceased and the witness concerning the indebtedness of the former to claimant. The witness was clearly incompetent under Code section 622.4, I.C.A., and the court sustained intervenors' objection that the 'Guardian and Administrator object to questions and answers * * * of this witness * * * for the reasons that the alleged contract is barred by this statute of limitations * * *, and the witness is incompetent under the dead man's statute * * *'.
On February 11, 1948 the trial was resumed. Judge Yoder said: 'It is understood by and between counsel for all parties and the Court that the provisions of Paragraphs Two and Three of the stipulation of April 26, 1947, on file herein, apply solely to matters of evidence, as distinguished from matters of pleading.' (Italics added.)
'It is further understood by and between Counsel for all parties that * * * the Guardian for the Liechti heirs and guardian ad litem for said heirs, shall have the right to file such additional pleading herein as he may deem proper and appropriate * * * and that * * * the attorney for claimant, shall have the right * * * to file proper resistance or reply thereto.' Counsel for intervenors and claimant acquiesced in what the court said, but the interpretation (italicized above) of paragraph two of the stipulation, supra, appears entirely too narrow. It clearly includes 'pleading' by its express terms.
Immediately following the statement of the court, and on February 11 1948, the intervenors filed answer and objections to the Kuhn claim, as amended, denying its allegations, and alleging that the claim had 'long ago been barred by the Statute of Limitations either as an open running account, oral promise for repayment of moneys or other things and is barred as a contract of any kind, and said claim does not constitute a claim against the estate of any kind and does not...
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